HOWARD R. LLOYD, Magistrate Judge.
Plaintiff Daniel Valencia appeals a decision denying his application for disability insurance benefits under Title II of the Social Security Act (Act). The parties have filed cross-motions for summary judgment.
Valencia was born in 1983 and was 30 years old at the time the Administrate Law Judge (ALJ) rendered the decision under consideration here. After graduating from college in 2005 with an engineering degree, plaintiff began working for Adobe Systems, Inc. (Adobe) as a software engineer. Valencia claims that he began experiencing pain in his neck, upper back, and bilaterally in his shoulders, arms, and hands. He last worked in January 2009.
He applied for disability insurance benefits, alleging disability since August 10, 2008
At the hearing, plaintiff testified that he could not work due to cervical dystonia and sleep apnea.
The ALJ found that plaintiff last met the insured status requirements of the Act on December 31, 2012 and that he had not engaged in substantial gainful activity from his original alleged onset date of August 10, 2008 through his date last insured. The ALJ further found that Valencia has the following severe impairments: status post septum straightening surgery and jaw surgery and obstructive sleep apnea. However, he found that plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. 404.1520(d), 404.1525, and 404.1526). The ALJ concluded that Valencia could perform his past relevant work as a software engineer, finding that he had the residual functional capacity (RFC) to perform sedentary work as defined in 20 C.F.R. § 404.1567(a), with certain limitations as follows:
(AR 30). Alternatively, the ALJ concluded that plaintiff could perform other jobs existing in the national economy—namely, data entry clerk; assembler, Dictionary of Occupational Titles (DOT) 734.687-018; and charge account clerk, DOT 205.367-014.
In making that determination, the ALJ partially discounted Valencia's testimony and gave little weight to the opinion of plaintiff's treating physician, Dr. Norman Banks, who diagnosed plaintiff with cervical dystonic syndrome (which he believed caused thoracic outlet syndrome) associated with anterior scalene muscular spasm, and ongoing myofascial-related pain involving the bilateral trapezius musculature. Instead, the ALJ gave significant weight to the opinion Dr. Witkind, who testified that the diagnosis of thoracic outlet syndrome was not well proven and concluded that plaintiff could perform medium work. The ALJ also gave significant weight to the opinions of the State agency physicians who reviewed plaintiff's records and concluded that he could perform light work with some limitations.
The Appeals Council denied Valencia's request for review, and the ALJ's decision became the final decision of the Commissioner. Plaintiff now seeks judicial review of that decision, contending that the ALJ erred in a number of ways. In essence, he argues that the ALJ improperly discounted the importance of Dr. Banks' opinion; made faulty RFC findings; failed to fully question Valencia and develop the record as to the demands of his past relevant work; posed an improper hypothetical to the vocational expert; made findings at step five of the sequential analysis that are not supported by substantial evidence; and improperly discredited plaintiff's subjective complaints.
Pursuant to 42 U.S.C. § 405(g), this court has the authority to review the Commissioner's decision to deny benefits. The Commissioner's decision will be disturbed only if it is not supported by substantial evidence or if it is based upon the application of improper legal standards.
The Act defines disability as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. § 423(d)(1)(A). Additionally, the impairment must be so severe that a claimant is unable to do previous work, and cannot "engage in any other kind of substantial gainful work which exists in the national economy," considering the claimant's age, education, and work experience.
In determining whether a claimant has a disability within the meaning of the Act, an ALJ follows a five-step analysis, 20 C.F.R. § 404.1520:
The claimant bears the burden of proof at steps one through four; the Commissioner has the burden at step five.
Plaintiff argues that the ALJ erred in giving "little weight" to Dr. Bank's opinion and instead giving "significant weight" to that of Dr. Witkind and the State agency doctors.
Dr. Banks, a physiatrist, treated Valencia for several years and, as discussed above, he is the physician who diagnosed plaintiff with cervical dystonic syndrome and ongoing myofascial-related pain. On March 18, 2013, he completed an RFC questionnaire in which he opined that Valencia can walk 1-2 city blocks without rest or pain; can sit for 20 minutes at a time; can stand 10-15 minutes at one time; can sit and stand/walk less than 2 hours in an 8-hour day; needs to walk every 20 minutes for about 10 minutes at a time; and needs to shift positions and take unscheduled breaks 8-9 times per day for 20-30 minutes at a time. He further stated that plaintiff can rarely lift less than 10 pounds and never more than 10 pounds; can occasionally look down, turn his head left or right, and look up; rarely hold his head in a static position; rarely twist, stoop, or crouch; and never climb ladders or stairs. He noted no limitations with reaching, fingering, or handling, and said that Valencia was likely to have good days and bad days and would miss an average of 4 days of work per month due to his impairments. Dr. Banks further noted that "Findings from 2007 EMG [electromyogram] were consistent with thoracic outlet syndrome" and wrote a comment to "see clinical notes for further information." (AR 1017-1020).
At the administrative hearing, neurologist Dr. Witkind testified that although plaintiff had been diagnosed with myofascial pain in the cervical and shoulder regions, there was no evidence of weakness or atrophy and that the diagnosis of thoracic outlet syndrome was "not really well proven in the file." (AR 54). He acknowledged that thoracic outlet syndrome is often a diagnosis of exclusion and that x-rays revealed that Valencia had a cervical rib, but that it did not appear to be a classic finding of thoracic outlet syndrome. (AR 72). He further testified that "true thoracic outlet would have more physical findings," noting that Valencia's diagnosis was not clearly borne out by x-ray and MRI evidence. (AR 72-73). He further opined that in benign cases of pain (i.e., cases not involving cancer or where there is no evidence of spinal cord or nerve root compression), he believed that the amount of medications plaintiff was taking was excessive on a long term basis and that plaintiff was overmedicated. (AR 72). Opining that plaintiff's alleged "pain problem [was] without a specific known pain generator," Dr. Witkind found Valencia's "subjective complaints are far outweighing any objective findings," except for sleep apnea, which Dr. Witkind agreed was a valid finding. (AR 67-68).
In Dr. Witkind's view, plaintiff could perform medium work—occasionally lift, pull, push, and carry up to 50 pounds and frequently 30 pounds or less; no standing or walking limitations; no limitations on climbing stairs or ramps; never ropes, scaffolds, or ladders; no height restrictions; no restrictions on balancing, stooping, crouching, kneeling, or crawling; no environmental limitations; no communication limitations; and no restrictions on fingering or handling, but would be limited to only occasional overhead reaching. (AR 56-59).
State agency physicians L. Bobba, M.D. and L. Limos, M.D. reviewed the medical evidence and opined that Valencia is not disabled. They noted that he had upper back myofascial pain, but that his symptoms improved following obstructive sleep apnea surgery and were currently controlled with medication. (AR 1047, 1056). They also noted the diagnosis of thoracic outlet syndrome attributed to muscular spasms/cervical dystonia, but stated that there were no documented neurological defects. (
The ALJ gave Dr. Banks' opinion "little weight" and instead gave "significant weight" to that of Dr. Witkind and the State disability examining physicians. He found that Dr. Banks' March 18, 2013 RFC assessment was not supported by objective evidence, was inconsistent with the record as a whole, lacked explanation, and was based on Valencia's subjective complaints.
When evaluating medical evidence, an ALJ must give a treating physician's opinion "substantial weight."
Valencia argues that the ALJ failed to provide clear and convincing reasons in discounting Dr. Banks' opinion. However, because Dr. Banks' opinion was contradicted by other physicians, the ALJ was required to articulate only "specific and legitimate" reasons, supported by substantial evidence.
The ALJ explained that both Dr. Banks' diagnosis and his assessment of Valencia's functionality were not supported by objective evidence. "The ALJ need not accept the opinion of any physician, including a treating physician, if that opinion is brief, conclusory, and inadequately supported by clinical findings."
Plaintiff also points out that in a May 19, 2014 letter, Dr. Banks stated that the thoracic outlet syndrome diagnosis was suggested by "the fullness of [plaintiff's] anterior scalene" and by his beneficial response to anterior scalene Botox injections. (AR 1060).
The ALJ explained that Dr. Banks' opinion was inconsistent with plaintiff's daily activities, noting that Valencia remained able to drive, use a computer, write, type, perform some household chores, run errands, attend to personal care, and maintain friendships. (AR 30). Conflicts with a claimant's activities may justify rejecting a treating physician's opinion.
In reviewing plaintiff's medical records, the ALJ correctly noted that on November 20, 2010, Valencia had improving pain control with his existing pain regimen (AR 31, 392), and on November 29, 2010, he was stable overall without new complications or complaints (AR 31, 907). Additionally, a December 2010 examination revealed that Valencia had 5/5 strength in his extremities, with triceps weakness that was "very subtle and may be effort dependent," with normal bulk and tone, and no wasting or fasciculations; normal reflexes and sensation; normal coordination and fine finger movements; and normal gait. (AR 31, 908). A June 2011 neurological examination showed that plaintiff was alert and oriented with normal attention and memory; normal range of motion in the neck; full strength on confrontational testing throughout his arms and legs; normal bulk and tone; and normal gait and coordination. (AR 31, 962). In October 2011, Dr. Banks noted that Valencia had two electromyogram/nerve conduction studies that were normal and that plaintiff was stable on Percocet. (AR 31, 759). In April 2012, Valencia is noted as being awake, alert, and oriented; having normal muscle tone; normal peripheral pulses in the extremities; and motor strength and sensation in the upper and lower extremities grossly intact and symmetric. (AR 31, 948). In April 2013, plaintiff was found to be alert and oriented, with full range of motion in the neck and no peripheral edema in the extremities. (AR 32, 1022). He reported that his pain was controlled on medication. (AR 1022).
The ALJ further explained that "Dr. Banks primarily summarized in the treatment notes the claimant's subjective complaints, diagnoses, and treatment, but he did not provide objective clinical or diagnostic findings to support the functional assessment." (AR 32). Indeed, when asked on the RFC assessment form to identify the clinical findings and objective signs to support his assessment, Dr. Banks wrote only: "Please see clinical notes." (AR 1017). However, as discussed, the ALJ reviewed Dr. Banks' notes and found that a number of physical exams reflected normal range of motion, strength, reflexes, sensation, gait, attention, and memory. (AR 31-32, 908, 948, 962, 1022). And, while Dr. Banks stated that findings from a 2007 electromyogram were consistent with thoracic outlet syndrome, Dr. Banks' clinical notes indicate that two more recent tests were normal. (AR 31, 759).
The ALJ also took into account Dr.Witkind's specialization in neurology, as well as his and the State agency physicians' familiarity with and understanding of Social Security disability programs and requirements. (AR 33). Under the regulations, the ALJ properly may credit their opinions based on their expertise. 20 C.F.R. § 404.1527.
The court concludes that the ALJ gave specific and legitimate reasons, supported by substantial evidence, for giving Dr. Banks' opinion little weight, in favor of those offered by Dr. Witkind and the State agency physicians.
Plaintiff nevertheless argues that the ALJ's RFC assessment is not supported by substantial evidence and is internally inconsistent with the opinions of Dr. Witkind and the State agency physicians he credited.
As discussed, Dr. Witkind observed that plaintiff had been diagnosed with myofascial pain in the cervical and shoulder regions, but noted that there was no evidence of weakness or atrophy and that the diagnosis of thoracic outlet syndrome was not clearly established by the medical and radiological evidence. (AR 32, 54, 67, 72-73). Relevant to the discussion here, he concluded that Valencia could perform medium work, but would be limited to occasional overhead reaching bilaterally. (AR 56-59).
The State agency physicians, Drs. Bobba and Limos, noted the thoracic outlet syndrome diagnosis, found that plaintiff had severe disorders of muscle, ligament, and fascia (AR 1044, 1053), and concluded that he could perform light work, with limited reaching but otherwise unlimited handling and fingering; occasional to frequent postural limitations; and avoidance of concentrated exposure to hazards (machines, heights, etc.). (AR 1045-47, 1055-56).
Among the opinion evidence, the ALJ declined to adopt any particular RFC assessment in its entirety and said that he would instead "adopt[] a residual functional capacity that is best supported by the objective evidence as a whole." (AR 32). In determining Valencia's RFC, the ALJ partially credited plaintiff's subjective complaints (AR 30) and found that he was more limited than as opined by Dr. Witkind and the State physicians. In the end, the ALJ concluded that plaintiff could perform less than a full range of sedentary work: lift and/or carry ten pounds occasionally, less than ten pounds frequently; he can sit, stand and/or walk for six hours out of an eight-hour workday; he can occasionally climb stairs and ramps, stoop, balance, crouch, kneel, and crawl; and he is never to climb ladders, ropes, or scaffolds. (AR 30).
Valencia argues that the ALJ erred by (1) failing to resolve the conflict between the opinions of Dr. Witkind and the State agency physicians as to the thoracic outlet syndrome diagnosis; and (2) failing to adopt the reaching limitations included by Dr. Witkind and both State agency physicians in their respective RFC findings.
It is the ALJ's responsibility to determine a claimant's RFC.
In crediting Dr. Witkind's opinion, the ALJ gave a detailed summary of his testimony, including that thoracic outlet syndrome was not clearly established in the medical and radiological evidence and is a rare diagnosis (usually one of exclusion); and that Valencia has a pain problem without a specific known pain generator (other than Dr. Banks' opinion of thoracic outlet syndrome). (AR 32-33). As discussed above, the ALJ reviewed the medical evidence and correctly noted that records showed normal neurological function, attention, memory, strength and range of motion and that plaintiff's condition was stable overall with pain controlled on existing medication. (
The ALJ did not include a restriction on reaching in his RFC assessment, but that determination is supported by substantial evidence. As Dr. Witkind pointed out, Valencia exhibited no weakness or atrophy. (AR 32, 54). And, the ALJ correctly noted that physical examinations revealed normal functioning in the upper extremities. (AR 31-32). For example, and as already discussed, a December 2010 examination revealed that Valencia had 5/5 strength in his extremities, with triceps weakness that was "very subtle and may be effort dependent," with normal bulk and tone, and no wasting or fasciculations; normal reflexes and sensation; normal coordination and fine finger movements; and normal gait. (AR 31, 908). A June 2011 neurological examination showed that plaintiff was alert and oriented with normal attention and memory; normal range of motion in the neck; full strength on confrontational testing throughout his arms and legs; normal bulk and tone; and normal gait and coordination. (AR 31, 962). In April 2012, Valencia is noted as being awake, alert, and oriented; having normal muscle tone; normal peripheral pulses in the extremities; with motor strength and sensation in the upper and lower extremities grossly intact and symmetric. (AR 31, 948). In April 2013, plaintiff was found to be alert and oriented, with full range of motion in the neck and no peripheral edema in the extremities, and he reported that his pain was controlled on medication. (AR 32, 1022).
The Commissioner argues that, even if a limitation for occasional overhead reaching was included in the ALJ's RFC assessment, such a finding would not have made a difference in the ALJ's ultimate conclusion that plaintiff is not disabled. Indeed, the DOT indicates that, as generally performed, the duties of a software engineer include no more than occasional reaching.
The court finds that the ALJ reasonably resolved any conflict between Dr. Witkind's opinion as to the thoracic outlet syndrome diagnosis and those of the State agency physicians.
The ALJ found that Valencia could perform his past relevant work as a software engineer, as actually and generally performed, and that this work did not require the performance of work-related activities precluded by his RFC. Plaintiff contends that the ALJ's conclusion is not supported by substantial evidence because he did not question Valencia at the administrative hearing as to the physical and mental demands of his work.
At step 4 of the five-step sequential analysis, the claimant has the burden of showing that he can no longer perform his past relevant work, but the ALJ must still make the requisite factual findings to support his conclusion.
"Social Security Regulations name two sources of information that may be used to define a claimant's past relevant work as actually performed: a properly completed vocational report, SSR 82-61, and the claimant's own testimony, SSR 82-41."
Here, the Commissioner does not dispute that the ALJ did not question Valencia about the mental and physical demands of his past work as a software engineer. But defendant says it was unnecessary for the ALJ to do so because plaintiff provided that information in a work history report. Indeed, in that report, plaintiff indicated that for his software engineer job, he used machines, tools, or equipment; used technical knowledge and skills; and wrote reports. (AR 161). Additionally, he typed/used a computer 6-8 hours per day; wrote, typed or handled small objects 7-8 hours per day; walked 1 hour per day; stooped 30 minutes per day; reached 30 minutes per day; handled or grabbed big objects 30 minutes per day; crouched 15 minutes per day; and never kneeled or crawled. (AR 161). Further, the form states that lifting/carrying duties involved "lifting and moving computers and laptops 5-30 lbs, short distances"; that the heaviest weight Valencia lifted was 20 pounds or 30-35 pounds; and that he frequently lifted less than 10 pounds. (
In concluding that plaintiff could perform his past relevant work, the ALJ stated:
(AR 34). Based on this explanation, it is not entirely clear that the ALJ relied on plaintiff's work history report in concluding that he could perform his past relevant work. Even so, the decision indicates that he did consider all of Valencia's documented work background, and the ALJ properly could rely on the vocational expert's testimony and the DOT to support his conclusion that plaintiff could do his past relevant work as generally performed. SSR 82-61 at *2 ("The [DOT] descriptions can be relied upon—for jobs that are listed in the DOT—to define the job as it is usually performed in the national economy."). Regulations recognize that some individual jobs may require somewhat more or less exertion than the DOT description; however, if a claimant can perform the functional demands and job duties as generally required by employers throughout the economy, he should be found not disabled.
In this case, the vocational expert testified that a software engineer job is skilled, sedentary work. (AR 98). The ALJ correctly noted that this testimony is consistent with the DOT.
Emphasizing that the ALJ found that plaintiff's sleep apnea was a severe impairment, plaintiff argues that the ALJ erred at steps 4 and 5 by failing to account for his fatigue symptoms in the hypothetical presented to the vocational expert. "The hypothetical an ALJ poses to a vocational expert, which derives from the RFC, `must set out all the limitations and restrictions of the particular claimant.'"
For the reasons already discussed, the court finds that the ALJ properly evaluated the medical evidence. In determining plaintiff's RFC, the ALJ explained that he "considered all symptoms and the extent to which these symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence," and further stated that his RFC assessment took "into consideration the claimant's subjective complaints while finding the maximum limitations based on the objective evidence." (AR 30, 33). As discussed, the ALJ gave significant weight to the opinion of Dr. Witkind, who found sleep apnea to be a valid finding, as well as to the opinions of the State agency physicians, who accounted for Valencia's symptoms of fatigue and pain. As discussed, however, the ALJ was not required to agree with everything those doctors said.
Although not required, the ALJ made an alternate finding at step 5 that Valencia could perform other jobs existing in the national economy: data entry clerk;
To the extent Valencia reiterates his argument that the ALJ should have included certain limitations included by Drs. Witkind, Bobba, and Limos in their assessments, that argument is unpersuasive for the reasons already discussed.
Based on the ALJ's hypothetical, the vocational expert testified that such a person could perform the other sedentary jobs identified above. (AR 101-02). The ALJ's ultimate RFC determination attributed greater capability to plaintiff than the hypothetical individual and did not, for example, include any limitations on fingering or reaching. Because the hypothetical that the ALJ posed to the vocational expert contained all of the limitations the ALJ found credible and supported by substantial evidence, he properly could rely on the vocational expert's testimony in response to the hypothetical.
Finally, Valencia argues that the ALJ improperly discredited his testimony based on his daily activities and social interactions and failed to properly consider plaintiff's work record.
An ALJ is not required to believe every allegation of disabling pain or other non-exertional impairment.
The ALJ concluded that although Valencia's medically determinable impairments could reasonably be expected to cause the alleged symptoms, plaintiff's statements concerning the intensity, persistence and limiting effects of those symptoms were not entirely credible. (AR 31). In making this determination, the ALJ considered several factors.
As previously discussed, the ALJ noted that the medical evidence did not support plaintiff's allegations. (AR 30-33). For example, a number of physical examinations revealed that Valencia had normal strength in his upper and lower extremities, full range of motion in his neck, normal gait, was alert and oriented, and had normal attention and memory (
Additionally, in a finding not challenged on this appeal, the ALJ found that plaintiff did not receive the type of treatment one would expect for a completely disabled individual, correctly noting that treatment records showed that Valencia received routine, conservative, non-emergency treatment, such as pain medications and physical therapy. (AR 31).
The ALJ also observed that plaintiff engaged in "a somewhat normal level of daily activity and interaction," including "he has a driver license and is able to drive, is able to use a computer, regularly attends church, and has good friends." (AR 30). Additionally, the ALJ noted that in a pain questionnaire, Valencia stated that he writes, types, brushes his teeth, does chores, showers, go[es] shopping, and run[s] errands." (
Plaintiff nevertheless contends that, given his college degree and relatively high income earned at Adobe, the ALJ should have determined that he is "unlikely to make up his impairments and limitations only to qualify for Social Security disability." The ALJ, however, did not fully discredit plaintiff's subjective complaints. Nor did he suggest that plaintiff was inventing his impairments. Rather, as discussed above, the ALJ appeared to give considerable credit to plaintiff's testimony in limiting him to less than a full range of sedentary work.
The ALJ gave sufficiently specific reasons supported by substantial evidence for partially discrediting plaintiff's testimony. The court finds no error here.
Based on the foregoing, plaintiff's summary judgment is denied and defendant's cross-motion for summary judgment is granted. The clerk shall enter judgment accordingly and close this file.
SO ORDERED.
